Case 2:17-cv-00140-WCB-RSP Document 216 Filed 10/18/18 Page 1 of 7 PageID #: 10417
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`CYWEE GROUP LTD.,
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`Plaintiff
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`v.
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`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC.,
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`Defendants.
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`NO. 2:17-CV-00140-WCB-RSP
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`DEFENDANTS SAMSUNG ELECTRONICS CO., LTD. AND SAMSUNG
`ELECTRONICS AMERICA, INC.’S REPLY IN SUPPORT OF MOTION FOR
`PARTIAL RECONSIDERATION
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`Case 2:17-cv-00140-WCB-RSP Document 216 Filed 10/18/18 Page 2 of 7 PageID #: 10418
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`CyWee’s opposition fails to reconcile the basic inconsistency in its positions on the plain
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`and ordinary meaning of a “3D pointing device.” There is no dispute CyWee represented to this
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`Court throughout the claim construction process that a “3D pointing device” should be broadly
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`construed as “a handheld device that uses at least a rotation sensor comprising one or more
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`gyroscopes, and one or more accelerometers to determine deviation angles or the orientation of a
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`device.” It is also undisputed that CyWee subsequently argued before the PTAB that a “3D
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`pointing device” should be much more narrowly construed (despite the BRI standard applicable
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`at the PTAB, versus the Phillips standard applicable here) as “a device capable of sensing
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`movement and orientation in three dimensions to point to or control actions on a display.” The
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`distinction is critically important because Samsung is currently prohibited from arguing to the
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`jury that a 3D pointing device, by its plain and ordinary meaning, requires a cursor or pointer on
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`a display. CyWee should not be permitted to advance a broad meaning in this case to attempt to
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`prove infringement, and later advance a much narrower meaning in the PTAB to attempt to
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`avoid invalidity, while Samsung is prohibited from telling the jury that the plain and ordinary
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`meaning is simply what CyWee told the PTAB it was.
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`CyWee’s opposition attempts to distract from its own positions without clarifying what it
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`believes the plain and ordinary meaning of a “3D pointing device” actually is. It is apparent from
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`the record that a 3D pointing device must perform some pointing function and that CyWee itself
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`believes a 3D pointing device must be able to point to or control something on a display and
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`“perform control actions and movements . . . for certain purposes including entertainment such
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`as playing a video game, on the display device through the [] pointer on the screen.” Dkt. 205 at
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`3. CyWee’s argument that the 3D pointing device can control any graphical output misses the
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`mark. The specific type of graphic displayed is not at issue here and the meanings of the terms
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`-1-
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`Case 2:17-cv-00140-WCB-RSP Document 216 Filed 10/18/18 Page 3 of 7 PageID #: 10419
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`“pointer” and “cursor” are not as limited as CyWee suggests. Accordingly, Samsung’s motion
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`for reconsideration should be granted.
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`I.
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`ARGUMENT
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`CyWee’s opposition fails to reconcile the glaring inconsistencies in its own positions.
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`First, CyWee cannot dispute that it argued for a restrictive meaning of 3D pointing device in the
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`PTAB that is inconsistent with its prior arguments here and the prohibition set forth in the
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`Court’s August 14, 2018 order. Second, CyWee cannot argue that the construction of 3D
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`pointing device in this Court cannot be broader than the construction at the PTAB.
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`First, CyWee fails to address all of its prior arguments to this Court that a “3D pointing
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`device” should be broadly construed as “a handheld device that uses at least a rotation sensor
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`comprising one or more gyroscopes, and one or more accelerometers to determine deviation
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`angles or the orientation of a device.” Dkt. No. 66 at 15–17; Dkt. No. 71 at 5–7; 8/10/18 Hr’g Tr.
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`at 52:1–21. Based on these representations, CyWee succeeded in obtaining its plain and ordinary
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`meaning construction from the Court and, further, a prohibition against Samsung arguing that a
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`3D pointing device requires a cursor or pointer on a display.
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`Now, however, for the purposes of overcoming the prior art at the PTAB, CyWee argues
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`that a 3D pointing device must perform a pointing function, i.e., be “a device capable of sensing
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`movement and orientation in three dimensions to point to or control actions on a display.” Dkt.
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`No. 205 at 3; Dkt. 179, Ex. 1 at 20; Dkt. 179, Ex. 2 at 21 (emphasis added). The meaning CyWee
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`advanced to the PTAB is thus in direct opposition to the Court’s prohibition that Samsung cannot
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`argue that the plain and ordinary meaning of a “3D pointing device” requires a cursor or pointer
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`on a display, essentially what CyWee told the PTAB it means.
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`CyWee does not dispute that in proposing a more restrictive construction at the PTAB, its
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`expert, Dr. Blank, relied on this description of a 3D pointing device in the patents-in-suit:
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`Case 2:17-cv-00140-WCB-RSP Document 216 Filed 10/18/18 Page 4 of 7 PageID #: 10420
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`A user may perform control actions and movements utilizing the
`pointing device for certain purposes including entertainment such
`as playing a video game, on the display device 120 through the
`aforementioned pointer on the screen 122.
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`’438 Patent at 1:48–52 (emphasis added); ’978 Patent at 1:52–55. Samsung relied on this passage
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`in its own claim construction briefing. Dkt. 67 at 18–19. This passage plainly contemplates a
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`pointer on the screen and supports Dr. Blank’s argument that a 3D pointing device must point to
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`or control actions on a display. To salvage its infringement positions, CyWee states that Dr.
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`Blank did not intend to testify that a pointer was required. Dkt. 205 at 4–5. However, this self-
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`serving clarification appears nowhere in Dr. Blank’s declarations before the PTAB.
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`CyWee’s new argument that a 3D pointing device must perform a pointing function, but
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`the specific type of graphical output is immaterial, does not support the conclusion that the
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`Court’s prohibition is still warranted. As explained in Samsung’s Responsive Brief (Dkt. 67), the
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`specific type of graphic that is displayed on the screen and controlled by the user is not at issue.
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`Further, the meanings of the terms “pointer” and “cursor” are not as limited as CyWee suggests.
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`See SyncPoint Imaging, LLC v. Nintendo of Am. Inc., No. 2:15-cv-00247-JRG-RSP, 2016 U.S.
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`Dist. LEXIS 677, at *31 (E.D. Tex. Jan. 5, 2016) (construing a “cursor” as “a visible mark that is
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`generated by the computer and that indicates a position on the display for the visual output from
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`the computer.”). Instead, even CyWee has admitted that a 3D pointing device must be capable of
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`pointing to or controlling actions on a display and is not merely any device with movement
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`sensors. It would be improper and unfair to prohibit Samsung from explaining what that
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`means—i.e., the pointing device controls a pointer, cursor, or some other graphic.
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`Also contrary to CyWee’s Opposition, lifting the Court’s current prohibition would not
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`contradict Figure 6 of the patents-in-suit. As set forth in Samsung’s Responsive Brief (Dkt. 67),
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`Figure 6 still requires that a device with an integrated display actually display the device’s
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`Case 2:17-cv-00140-WCB-RSP Document 216 Filed 10/18/18 Page 5 of 7 PageID #: 10421
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`“movement pattern.” See ’438 Patent at 10:29–41; ’978 Patent at 13:46–57. Again, this
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`embodiment requires that the pointing device point to something that is being displayed.
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`Second, CyWee’s conclusory argument that the different standards do not matter fails.
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`CyWee cites no authority explaining why it should be allowed to obtain a broader construction
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`under the Phillips standard before this Court than it argued was proper under the BRI standard
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`before the PTAB. To the contrary, the opposite is true—the construction of a term under the
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`Phillips standard cannot be broader than the construction under the BRI standard. Facebook, Inc.
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`v. Pragmatus AV, LLC, 582 F. App’x 864, 869 (Fed. Cir. 2014). In violation of this precedent,
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`CyWee argues in this Court that a 3D pointing device may be any device with sensors, to try to
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`prove infringement, but argues in the PTAB that a 3D pointing device must perform a pointing
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`function, to try to avoid invalidity. CyWee cannot have it both ways, and Samsung should not be
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`prohibits from pointing that out to the jury, or at least arguing to the jury essentially the same
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`meaning that CyWee advocated to the PTAB.
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`II.
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`CONCLUSION
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`For these reasons, Samsung respectfully requests that the Court remove its prohibition
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`against Samsung arguing to the jury that the plain and ordinary meaning of “3D pointing device”
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`requires a cursor or pointer on a display.
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`-4-
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`Case 2:17-cv-00140-WCB-RSP Document 216 Filed 10/18/18 Page 6 of 7 PageID #: 10422
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`DATED: October 18, 2018
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`Respectfully submitted,
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`By: /s/ Christopher W. Kennerly
`Christopher W. Kennerly
`TX Bar No. 00795077
`chriskennerly@paulhastings.com
`PAUL HASTINGS LLP
`1117 S. California Ave.
`Palo Alto, California 94304
`Telephone: (650) 320-1800
`Facsimile:
`(650) 320-1900
`
`Barry Sher (pro hac vice)
`NY Bar No. 2325777
`barrysher@paulhastings.com
`Zachary Zwillinger (pro hac vice)
`NY Bar No. 5071154
`zacharyzwillinger@paulhastings.com
`PAUL HASTINGS LLP
`200 Park Avenue
`New York, New York 10166
`Telephone: (212) 318-6000
`
`Elizabeth L. Brann (pro hac vice)
`CA Bar No. 222873
`elizabethbrann@paulhastings.com
`Bob Chen (pro hac vice)
`CA Bar No. 273098
`bobchen@paulhastings.com
`PAUL HASTINGS LLP
`4747 Executive Drive, 12th Floor
`San Diego, California 92121
`Telephone: (858) 458-3000
`Facsimile:
`(858) 458-3005
`
`Melissa R. Smith
`TX Bar No. 24001351
`melissa@gillamsmithlaw.com
`GILLAM & SMITH, LLP
`303 S. Washington Ave.
`Marshall, TX 75670
`Telephone: (903) 934-8450
`Facsimile: (903) 934-9257
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`Attorneys for Defendants
`SAMSUNG ELECTRONICS CO. LTD AND
`SAMSUNG ELECTRONICS AMERICA, INC.
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`-5-
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`Case 2:17-cv-00140-WCB-RSP Document 216 Filed 10/18/18 Page 7 of 7 PageID #: 10423
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and correct copy of the foregoing document was filed
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`electronically in compliance with Local Rule CV-5 on October 18, 2018. As of this date, all
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`counsel of record had consented to electronic service and are being served with a copy of this
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`document through the Court’s CM/ECF system under Local Rule CV-5(a)(3)(A).
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` /s/ Christopher W. Kennerly
`Christopher W. Kennerly
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`-6-
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